What Janus Means for Teachers Unions: The Supreme Court Will Soon Issue a Ruling on Whether Public Employees, Including Teachers, Can Be Required to Pay Union Fees

By Underwood, Julie | Phi Delta Kappan, May 2018 | Go to article overview

What Janus Means for Teachers Unions: The Supreme Court Will Soon Issue a Ruling on Whether Public Employees, Including Teachers, Can Be Required to Pay Union Fees


Underwood, Julie, Phi Delta Kappan


Nearly every U.S. Supreme Court case is significant, but this year brings a remarkable case with the potential of overturning 40-year-old precedent and dramatically changing public employment law. On February 26, the U.S. Supreme Court heard oral arguments on Janus v. American Federation of State, County, and Municipal Employees, a case involving public employee union fees. Although the parties are neither educators nor schools, this case is of interest to all unions who represent public workers, including teachers and other public school employees. It boils down to whether the government, as an employer, can require nonunion workers to contribute to the union.

Unions at the Supreme Court

The Janus case has a certain deja vu feel to it. In January 2016, the U.S. Supreme Court heard oral arguments on Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (2016), another case involving public employee union fees. There, Rebecca Friedrichs and nine other teachers who were not union members argued they should not be forced to pay "fair share" fees to the California Teachers Association. Fair share fees are the costs nonunion members are required to pay to the union to offset the union's cost of representing the entire bargaining unit during negotiations and related discussions. The nonunion members who brought the case argued that the union expressed views with which they did not agree and that they should not be required to contribute funds to the group. However, the Ninth Circuit Court of Appeals held in favor of the union, basing its decision on the unanimous 1997 U.S. Supreme Court case, Abood v. Detroit Board of Education.

When the Friedrichs case went to the Supreme Court, most legal commentators predicted that the Court's conservative justices would reach a bare majority decision against the fair share requirement, overturning the Ninth Circuit Court's decision. But in February 2016, Justice Antonin Scalia passed away, and in March 2016, the Friedrichs case was released with what might be the shortest possible Supreme Court opinion: "The judgment is affirmed by an equally divided Court." This means that since the lower court, the Ninth Circuit Court of Appeals, had ruled in favor of the California Teachers Association, and the eight-member Supreme Court was equally split on the issue, the decision in the union's favor would remain.

The rights of unions to collect various fees from nonunion members has been the subject of a number of Supreme Court decisions, beginning with the Abood case cited in the Ninth Circuit ruling:

* Abood v. Detroit Board of Education, 431 U.S. 209 (1977). In this case, the Court unanimously allowed unions to charge fair share fees to nonunion workers to pay for the cost of the collective bargaining the union provides to all workers in the bargaining unit, both members and nonmembers.

* Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). This unanimous decision delineated some of the details of collecting fair share fees. The Court said that those who pay fair share fees should be able to object to fees and fee collections and have their objections attended to expeditiously. In addition, they must be provided information on how fees were calculated and used.

* Lehnert v. Ferris Faculty Association, 500 U.S. 507(1991). This 5-4 decision is complex, with justices offering a number of concurrences and dissents. At a minimum, the case held that the fair share fees of nonunion members may not be spent on political lobbying and public relations.

* Knox v. Service Employees International Union, 567 U.S. 298 (2012). The union involved had a special assessment for political activity, and in a 7-2 decision, the Court held that the union had to provide nonmembers the opportunity to opt out of the payment for that activity.

* Harris v. Quinn, 573 U.S. (2014). This case addressed the question of whether fair share fees violate the rights of nonunion members to free speech and association when the state requires employees to pay them as part of their public employment contract. …

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